November 18, 2003MINUTES OF THE REGULAR MEETING
OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION & ARBITRATION
BOARD,
Tuesday, November 18, 2003 at 6:00 p.m.
at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
Commissioner Becker called the meeting to order at 6:11 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Mosbrucker;
Mosser.
Commissioners not Present: Lightner, Wasserman.
Staff Present: Grubb; Lee; Wolf.
Commissioner Murphy appeared on the record at 6:21
p.m.; Commissioner Justman arrived at the meeting at 6:30 p.m.; and Commissioner
Marshall appeared at 7:25. Commissioner Justman went off the record at 8:30
p.m.
III. Approval of the Minutes
IV. Remarks from the Public
A. Michael Rossoff made remarks concerning his case, which will be discussed in Executive Session. Mr. Rossoff said that his case was remanded by the Superior Court because extraordinary circumstances sufficient to warrant a comparables increase were found, and this should occur. Mr. Rossoff pointed out that even the tenant's expert found that the rents were not set at market at the inception of the tenancies. He said that the sales price for the property was predicated on his obtaining a comps increase and a retroactive change in the law would be unfair.
B. Landlord Jeffrey Katz of 1080 Post St. (AT030329) said that his purchase price for the building reflected the rent levels and that the granting of an untimely hardship appeal could jeopardize his ability to maintain the building.
C. Robert Pender distributed the latest Parkmerced Residents' Organization (PRO) newsletter, and said that there will be a meeting on Saturday. Mr. Pender supports the efforts of a developer to build 185 new units on Brotherhood Way and appreciates the break in attending Rent Board hearings.
D. Katy Meador, the landlord at 537 Fillmore #2 (AL030330), told the Board that the tenant had desperately wanted the only garage in the building. Since the garage was always dealt with separately, was on a separate lease, and garages weren't available to all tenants in the building, the landlord thought that the garage was not covered by rent control. Ms. Meador would have preferred it if the tenant had come to her, and said that the decision presents a hardship.
E. Tenant Harry Campbell of 1408 California St. (AT030321) told the Board that he had no problems with his landlord until Skyline Realty took over. Mr. Campbell described a "dreadful" situation with a non-functioning toilet for 15 months. Mr. Campbell found the Administrative Law Judge's conclusion that he had sabotaged his own toilet "appalling," and asked that the Board hold the landlord responsible for their actions and remedy an injustice.
F. Tenant Cromer Jenkins of 147 Stillman St. (AT030325 & -26) said that the other units used for comparison in his landlord's comparables petition didn't reflect the condition of his unit, and that no rent increases should be allowed until repairs get made.
V. Vote on Whether to Go Into Closed Session Regarding the Case of Rossoff v. Rent Board (Superior Court Case No. 401226) Pursuant to S.F. Administrative Code Section 67.11{a}
VI. Closed Session re Rossoff, supra, Pursuant to Government Code Section
54956.9{a}
The Board went into Closed Session from 6:25 to 7:10 p.m. with Deputy City Attorneys Rafal Ofierski and Marie Blits to discuss the case of Rossoff v. Rent Board (Superior Court Case No. 401226).
VII. Vote on Whether or Not to Disclose and Possible Disclosure of Any/All
Conversations Held in Closed Session Regarding Rossoff, supra.
VIII. Report on Any Actions Taken in Closed Session Regarding Rossoff, supra,
Pursuant to Government Code Section 54957.1{a}{2} and S.F. Administrative
Code Section 67.14{b}{2}
Commissioner Becker reported that the Board held a Closed Session to discuss the Rossoff case with its attorneys.
IX. Public Hearing
Rossoff v. Rent Board: Proposed Amendments to Rules Section 6.11 Regarding Comparables Rent Increases
From 7:12 p.m. to 7:20 p.m., the Board held a Public Hearing on proposed amendments to Rules and Regulations Section 6.11(a) which would make it clear that comparables increases are only warranted in cases where the initial rent was set low due to extraordinary circumstances unrelated to market conditions. Three individuals spoke as follows below:
1. Michael Rossoff reiterated that his main concern is that any change not be made retroactive, since he filed his petition over four years ago. He believes that there is confusion over what constitutes "non-market conditions."
2. Janan New, Director of the San Francisco Apartment Association, said that the Board shouldn't address Rules changes when cases under judicial review are still pending. Ms. New believes that the courts have made it clear that retroactivity is not permissible.
3. Brook Turner of the Coalition for Better Housing said that, as a procedural issue, retroactivity is unfair.
X. Consideration of Appeals
The tenant's appeal was filed almost one year late because the tenant alleges she did not receive a copy of the decision and did not know the passthrough had been approved until it was time for her lease renewal.
The landlord's petition for certification of exterior painting costs in this multi-unit complex was granted. One tenant appeals the decision on the grounds of financial hardship.
The tenants' appeal was filed seven and one-half months late because the tenants do not speak English.
The landlord's petition for certification of capital improvement costs to 8 of 15 units was granted. The tenants in one unit appeal the decision on the grounds of financial hardship.
C. 3655 Vicente, Apt. #2 AL030327
The tenant's appeal of a decision certifying capital improvement costs was granted and the Administrative Law Judge found sufficient financial hardship to warrant a permanent deferral of the passthrough for this tenant. The landlord appeals the remand decision, claiming that: a permanent deferral is not warranted by the tenant's medical conditions; the tenant is choosing to work part-time; credit card debt should not be a factor taken into consideration; the landlord's employment is considered full-time in an academic context; the building is in need of expensive repairs; and the tenant has other options available to him.
The tenant's petition alleging unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $1,300.00. On appeal, the landlord asks for clarification as to the calculation of rent overcharges and anniversary date; states that there are factual inaccuracies in the decision; and alleges that the tenant testified incorrectly as to rent and utility charges.
The tenant's petition alleging decreased housing services in the form of a defective toilet was denied because the Administrative Law Judge found no failure to act on the part of the landlord. The tenant appeals, asserting that: the landlord's agent lied and intimidated the property manager into providing false testimony at the hearing; the Administrative Law Judge exhibited bias towards the landlord; and the landlord should be held accountable for the 15-month period during which the toilet malfunctioned.
The landlord's petition for rent increases for two units based on comparable rents was granted and the Administrative Law Judge found that increases from $1,050.00 to $1,325.00 were warranted. On appeal, the tenants claim that the increases are excessive because of the location of the building, lack of amenities in the building and poor condition of the building.
The tenants' petition alleging rent overpayments was granted and the landlords were found liable to the tenants in the amount of $6,893.76 due to increases on the garage in excess of limitations. On appeal, the landlords claim that: the garage was not included with the unit at the inception of the tenancy, and all parties agreed that it would be kept separate; two separate leases were entered into, one for the unit and one for the garage; and annual rent increases have always been within rent control limitations on the unit, while the garage increases have always been at fair market value.
XI. Old Business
Review of the Commission on the Environment's List of Energy
Conservation Improvements (Ordinance Section 37.7(c)(2))
The Board continued their discussion of whether future changes to the Commission on the Environment's List of Energy Conservation Improvements should be made without the approval of the Board of Supervisors but, rather, by the Rent Board through Rules and Regulations. Commissioner Becker reported that the Tenant Community would prefer that the Board of Supervisors retain jurisdiction over future changes to the list. The Rent Board therefore approved language drafted by Senior Administrative Law Judge Tim Lee amending the Rent Ordinance to incorporate the recommended improvements, and cross-referencing the List adopted by the Rent Board on September 30, 2003, which contains the amortization periods and terms and conditions for each improvement.
MSC: To recommend that the Board of Supervisors adopt draft amendments to Ordinance Section 37.7(c)(2) specifying additional qualified energy improvements and cross-referencing the Energy Conservation and Renewable Energy Improvement List approved by the Rent Board on September 30, 2003. (Gruber/Murphy: 5-0)
X. Consideration of Appeals (cont.)
The tenant's appeal was filed nineteen days late because the tenant was in Australia at the time the decision was mailed, and experienced medical difficulties upon his return.
The landlord's petition for certification of capital improvement costs was granted. One tenant appeals the decision on the grounds that: the decision is in error as to the effective date of the rent increases; exterior stucco work on the side of the building has not been completed; and the tenant requests that he be allowed to elect the 100% passthrough option with a 15% cap since he has a good cause reason for not having done so at the time of the issuance of the decision.
The tenant's petition alleging decreased housing services was granted, in part, and the landlord was found liable to the tenant in the amount of $851.25. On appeal, the landlord asserts that the Administrative Law Judge is wrong on the facts, law and conclusions in the Decision.
The landlord's petition for certification of capital improvement costs to 60 of 114 units was granted. One tenant appeals the decision on the grounds of financial hardship.
The tenant's petition alleging decreased housing services because the residential hotel was in violation of the provisions of the Uniform Visitor Policy was granted and the landlord was found liable to the tenant in the amount of $480.00. On appeal, the landlord maintains that: the value placed on the decreased housing services is unreasonable considering the amount of rent paid by the tenant; the hotel's Visitor Policy constitutes a reasonable interpretation of the Uniform Visitor Policy; there is no language in the Visitor Policy preventing a landlord from limiting visitors to one at a time; serious overcrowding and diminished quality of life would result from allowing each tenant to have two visitors at a time; the practice of limiting consecutive overnights takes into account the needs of the hotel to maintain health and safety and the rights of other tenants; and any relief granted should apply prospectively only.
After discussion, it was the consensus of the Board to continue consideration of this appeal to the next meeting, when a Neutral Commissioner will be present.
XII. Communications
In addition to correspondence concerning the proposed amendments to Rules Section 6.11, the Commissioners received the monthly workload statistics for October 2003, which failed to note the 5 petitions received for the Alternative Dispute Resolution Program.
IV. Remarks from the Public (cont.)
G. Landlord Jeffrey Katz of 1080 Post St. #12 (AT030329) posed several questions regarding the post-appeal process, and asked whether his response to the tenant's appeal had been considered. Mr. Katz considers the Board's actions in accepting an untimely hardship appeal to constitute a "taking."
XIII. Calendar Items
November 25, 2003 - NO MEETING
December 2, 2003
11 appeal considerations (1 cont. from 11/18/03)
XIV. Adjournment
Commissioner Becker adjourned the meeting at 8:55 p.m.